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IN RE: Proposed Amendment of Kentucky Rules of Evidence (KRE)

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IN RE: Proposed Amendment of Kentucky Rules of Evidence (KRE) 2018-14 IN RE: Proposed Amendment of Kentucky Rules of Evidence (KRE) ORDER This Court is advised that pursuant to KRE 1103(b). a meeting of the Evidence Rules Review Commission was called by the Chief Justice to review a proposed amendment to the Kentucky Rules of Evidence, an addition of a new section KRE 807, a copy of which is attached. Amendments to the Kentucky Rules of Evidence are governed by KRE 1102 which: in subsection (a) grants the Supreme Court of Kentucky the power to prescribe amendments or additions to the Kentucky Rules of Evidence; in subsection (b) sets out the procedure for the General Assembly to adopt amendments to the Kentucky Rules of Evidence that do not constitute rules of practice and procedure, granted solely to the Supreme Court of Kentucky in Section 116 of the Kentucky Constitution; and in subsection (c) requires that “(n)either the Supreme Court nor the General Assembly should undertake to amend or add to the Kentucky Rules of Evidence without first obtaining a review of the proposed amendments or additions from the Evidence Rules Review Commission.” Said rule provides a clear amendment process agreed to in 1992 by the General Assembly in HB 241 and by the Supreme Court of Kentucky. The Supreme Court of Kentucky, by order entered May 12, 1992, adopted the portions of the Kentucky Rules of Evidence that came within the rule making power of the Court, pursuant to Ky. Const. Sec. 116. The Court did not adopt the Commentary prepared to the KRE. Pursuant to the call of the Chief Justice, The Kentucky Evidence Rules Review Commission (KERRC) met on several occasions to consider the proposed addition of KRE 807, taking testimony from presenters and reviewing surveys of the laws and rulings of other states, before issuing a recommendation against the adoption of the proposed amendment to the Kentucky Rules of Evidence (The Recommendation of the KERRC and the Minority Report are attached hereto.) Additionally, this Court heard comment upon the proposal during the Annual Convention of the Kentucky Bar Association and received and reviewed written comment thereon. Upon review, the Supreme Court of Kentucky hereby adopts the recommendation of the Kentucky Evidence Rules Review Commission and thereby declines to adopt the proposed amendment. This Court recognizes the concern addressed in the proposed amendment and would consider alternate approaches upon presentation of future proposals. All sitting. All concur. ENTERED: September 21, 2018. KENTUCKY EVIDENCE RULES REVIEW COMMISSION RECOMMENDATION I. Background The purpose of evidence law is to aid the trier of fact in the search for the truth. Ihe Kentucky Rules of Evidence are a codification of the law of evidence, developed through a lengthy deliberative process and adopted by both the Kentucky General Assembly and the Kentucky Supreme Court for application, with limited exceptions, in all courts and all cases in the Commonwealth. The work of this Evidence Rules Review Commission is an extension of the original process for developing and adopting the Rules and is specifically sanctioned by KRE 1102(c). The Proposed Rule brings into play two fiindamental principles of the law of evidence as embodied in the KRE. The first is that all relevant, competent evidence should be admitted absent a compelling; justificatibh to deny its adimssidn.’The second,which findsits expressionin the hearsay rule, is that out-of-court statements offered to prove the truth of their contents should generally be excluded. The hearsay rule is premised on the well-founded conviction that most out-of-court statements lack sufficient trustworthiness to be admitted into evidence. They are not typically made under oath or subject to the scrutiny of cross-examination, and the trier of fact cannot observe and judge the credibility of the person making the statement. However, the numerous exceptions to the hearsay rule (there are a total of 27) bear witness to the many circumstances in which out-of-coiul statements are deemed sufficiently trustworthy to be admitted. An examination of the existing exceptions reveals the following: (1) numbers can be deceiving“16 of the 27 exceptions relate to documents (e.g., business records, public records, past recollections recorded) and three of the exceptions relate to reputation (e.g., personal and family history, property boundaries); (2) except for three seldom-used exceptions relating to real estate, none of the exceptions is case or subject matter specific; (3) none of the current exceptions are premised upon the age or disability of the declarant; (4) one exception allows for the admission of former testimony that was the subject of direct, cross, and redirect examination; and (5) one exception is for statements of personal and family history. The other six exceptions, which tend to have application in the broadest range of cases, are based upon centuries of human experience that provide strong circumstantial guarantees of trustworthiness not otherwise found in out-of-court statements. They are; present sense impressions; excited utterances; statements of then-existing mental, emotional or physical condition; statements for the purpose of medical treatment or diagnosis; statements under a belief of impending death (so-called "dying declarations"); and statements against interest. It is against this backdrop that the Proposed Rule must be evaluated. II. The Proposed Rule The Proposed Rule attempts to address a terrible and frightening situation—the physical and sexual abuse of young children. The targeted conduct is horrific, the victims fragile and almost always defenseless, and the harm to society great. The Proposed Rule would: apply only in situations involving the alleged physical or sexual abuse of children; allow the admission of out-of-court statements by declarants 12 years old or younger, which are determined by the court in a pretrial proceeding to have sufficient circumstantial guarantees of trustworthiness and which are not primarily testimonial in nature. The out-of-court statements would only be admitted if the child testifies, but the testimony does not include information contained in the out-of-court statements or if the child's testimony is not reasonably obtainable and there is corroborative evidence of the act that is the subject of the statement. The child's testimony is "not reasonably obtainable" for purposes of the exception if, among other justifications, the child claims a lack of memory of the subject matter or if the court finds that the child is unable to testify at the trial or hearing because of "infirmity, including the child's inability to communicate about the offense because of fear or a similar reason" and if that situation would not improve if the trial were delayed. It will be noted that the proposed rule would break new ground in a number of respects. First, it is subject matter or case specific, applying only to situations of physical and sexual abuse of children, and is likely to be used only in criminal and domestic relations cases. Second, it is limited by the age of the declarant. Third, it only applies to statements made by the victim of the alleged abuse. Fourth, it creates a new concept of declarant unavailability, which according to information presented to the Commission, would most often come into play when, due to anxiety over the proceedings, fear of the defendant, or the influence of other adults, the child simply czinnot bring himself or herself to testify (the child experiences "vapor lock" in the words of the prosecutors). Fifth, instead of reliance upon long-recognized guarantees of trustworthiness that underpin traditional hearsay exceptions, it places upon the trial court the responsibility for making pre-trial determinations of the trustworthiness of out-of-court statements as the avenue for admissibility. The process envisioned by this rule is presumably similar, albeit tailored to the specific type of conduct at issue, to that envisioned by the "residual hearsay rule" which the Kentucky Supreme Court rejected at the time of its initial adoption of the Rules of Evidence. The author and the proponents of the Proposed Rule have indicated that it is modeled largely on the statute which has been in place for several years in Ohio. The application of the Ohio rule was tested and upheld by the United States Supreme Court in the case of Ohio v. Clark, 135 S. Ct. 2173 (2015); 192 L.Ed.2d 306. However, the Supreme Court found in that case that the out-of-court statements were not testimonial in nature (they were made in the context of an ongoing emergency involving suspected child abuse, were made to teachers aimed at identifying and ending the threat; the conversation was informal and spontaneous; the statements were made to persons not principally charged with uncovering and prosecuting criminal behavior); thus the admission of those statements into evidence did not violate the confrontation clause of the Sixth Amendment. By way of contrast, the Supreme Court of Ohio in the case of Ohio V. Arnold, 126 Ohio St.3d 290 (2010), held that statements of a child victim made to interviewers at a child advocacy center that served primarily a forensic or investigative purpose were testimonial such that their admission at trial violated the defendant's confrontation rights. The interview process at the child advocacy center as described in that case is remarkably similar to the process that typically takes place at Kentucky child advocacy centers as described for the Commission. As noted above, the Proposed Rule does make provision for the exclusion of testimonial statements, but it is of concern that the process envisioned by proponents of the proposed rule may well be one that produces statements ultimately inadmissible under the Confrontation Clause of the Sixth Amendment. The Commission was presented with a survey of laws and rulings in other states which address matters similar to the Proposed Rule.
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